Rejected rules on advertising will be revisited

When Mark Levison first became chairman of a special Missouri Bar committee on lawyer advertising in 2003, he had no desire for it to be a lifetime appointment. But it’s starting to feel that way.

The Missouri Bar approved changes to advertising rules a few years back, and they took effect in 2006. All along, the committee expected it would need to revisit the issue to see how the rules were working. The group presented its latest ideas for change to the Board of Governors about a week ago.

Yet deep divisions over whether and how far to regulate legal advertising remain.

The Special Committee on Lawyer Advertising has scaled back its proposal from what it sent the board late last year, and the latest version was sent forward on a 6-3 vote with some members not present.

Chief among the changes is the proposed rules no longer would require attorneys to provide copies of advertisements, direct-mail pieces and affidavits to the Office of Chief Disciplinary Counsel.

The rules would spell out what “conspicuous disclosure” of the mandatory disclaimer means. The warning would have to be in type at least one-third the size of listed contact information and on a high-contrast background in print, and spoken slowly and clearly for TV and radio.

The rules also would require mailers to potential clients to include information for contacting the Office of Chief Disciplinary Counsel with complaints. And attorneys couldn’t vilify opponents in ads or use celebrities unless they were clients. The rules also discourage claims of discount rates unless they can be proved. Plus, the rules would cover out-of-state attorneys who seek clients in Missouri.

 The Board of Governors rejected the package of rules as a whole at its meeting by a 29-15 vote on July 17. But the board plans to revisit the issue in September and vote separately on the dozen or so proposed changes in language.

“Certainly advertising has a role to let people know they can get their rights addressed through attorneys,” said Levison, of Lathrop & Gage in St. Louis. “But I think the committee’s very cognizant of the fact that just advertising and getting clients does not in and of itself make the lawyer a capable counselor. It’s important that the public know there’s a number of ways to secure legal work.”

Even the slimmed-down version draws fierce opposition from many attorneys, and rumblings persist about a legal challenge if the changes win approval.

Several say the changes are unnecessary and are being pushed by those who think advertising of any kind is improper in the legal profession.

“No objective findings were ever made with respect to the efficacy of the current rules. No study of public harm, public perception or public need was ever engaged in by the committee,” advertising committee member James Thompson, of Edelman & Thompson in Kansas City, wrote in a formal report objecting to the committee’s proposal.  “At a bare minimum we owe the membership of this bar rules that are easy to understand, objective in their nature and easy to enforce. The proposed changes move this bar further away from that goal.”

St. Louis attorney Tom Casey, another member of the committee and a leader in the push for more restrictions on ads, said self-promotion harms the whole profession, and some people won’t be satisfied with any limits on advertising.

Casey said specific quantified data on the harm caused by ads isn’t available.

“There’s no readily available tangible evidence along those lines that is out there. I don’t know how you measure such a thing,” he said. “I know how I measure it. I try cases for a living. I go to St. Louis County, and I can’t get a jury to listen to a personal injury case because the jury pools have been tainted by lawyer advertising.”

Casey also said the threat of a legal challenge shouldn’t deter the bar.

“There’s a continuing impression by some that the implementation of the change that we’re making would foment litigation, that there would be constitutional challenges to what we are doing. My reaction to that is: ‘So what?’ We’re lawyers. That’s what we do for a living. We’re not going to be threatened or scared away by a nebulous threat of litigation.”

Levison said separately that when the rule changes were implemented a few years ago opponents threatened litigation, but no challenge ever was filed.

A legal analysis prepared by committee member William Lasley said the proposed changes are often modeled after rules in other states and still would leave Missouri with moderate restrictions compared to other state bars.

Legislation also has been proposed in recent years to curtail lawyer advertising, and proponents of the rule changes hope adoption by the state bar would derail a harsher state law requirement. This year’s legislation, HB180, would have required the mandatory disclaimer to be stated orally and on the screen at the start and end of a TV ad, along with an oral and written warning if the law firm routinely refers cases to outside firms.

The bill by House Judiciary Committee Chairman Bryan Stevenson, a Webb City attorney, never even reached a committee hearing.

The bill also has several other provisions, such as requiring detailed information and client consent if an ad refers to past case results; a ban on touting a collective amount won; and a warning that it’s no guarantee of future results. The legislation also would create a private cause of action against attorneys who violate the advertising rules.

Meanwhile, the bar’s advertising committee couldn’t reach consensus about the best way to enforce the rules, in whatever form they ultimately take.

The committee presented three options to the board: adding a staff member at the Office of Chief Disciplinary Counsel to focus on lawyer advertising; creating a bar committee to monitor advertising and report problems to the disciplinary counsel’s office; and self-reporting.

The disciplinary office, headed by Alan Pratzel, and the Advisory Committee of the Supreme Court also submitted letters to the board expressing concerns.

A requirement that direct mailers include information for contacting his office with a complaint could be problematic, Pratzel said, as people may complain about letters that comply with the rules and then see nothing done to the attorneys involved. He also said it would be inappropriate to provide greater funding or enforcement of advertising rules than other conduct rules.

“Such a response is likely to harm the credibility of the attorney discipline system in the eyes of the public,” he said.

The Advisory Committee, chaired by Jennifer Gille Bacon, of Polsinelli Shughart in Kansas City, echoed those concerns and questioned the need for further restrictions.

Questions about lawyer advertising that the advisory committee and legal ethics counsel see regularly “do not suggest a need for additional rules,” the group wrote.

“We are not aware of problems involving protection of the public or the integrity of the legal profession that will be addressed by the proposals,” according to the letter signed by Bacon. It added that a potential constitutional challenge would be costly and time-consuming.

Some believe those pushing for further changes are overreaching.

“When will we put the issue of lawyer advertising to bed and apply our energy to enforcement of the existing rules?” Springfield personal injury attorney Aaron Sachs wrote to the committee in August 2008. “When will we have given enough ear to the small but apparently determined special-interest group within The Missouri Bar championing tradition over function and attempting to deprive the citizenry of its right to information and choice?”